Modification: People v. Carrillo

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO CARRILLO,

Defendant and Appellant.

No. F084751

(Super. Ct. No. MCR09130)

California Court of Appeal

Fifth Appellate District

Filed April 8, 2024

Order Modifying Opinion and Denying Rehearing

[No Change in Judgment]

It is ordered that the opinion filed herein on March 15, 2024, be modified in the following particulars:

1. On page 2, second full paragraph, in the first sentence the word "after" in the sentence is changed to "when" so the sentence now reads:

Second, Carrillo's conviction and sentence qualified him for mandatory deportation only when he later admitted a probation violation and the additional jail time caused his total term of imprisonment to exceed one year, and thus became an aggravated felony.

2. On page 2, third full paragraph, in the third sentence, the word "misunderstand" is changed to "understand" so the sentence now reads:

Thus, a section 1473.7 motion may be based on the defendant's failure to meaningfully understand or defend against the "actual or potential adverse immigration consequences of" the additional incarceration imposed for a probation violation. (§ 1473.7, subd. (a)(1).)

3. On page 3, the first sentence of the last paragraph beginning "Here," the word "Here" is deleted and replaced with the phrase "Turning to the facts of this case" so the sentence now reads:

Turning to the facts of this case, a preponderance of the evidence shows Carrillo did not "meaningfully understand ... the ... potential adverse immigration consequences of a conviction or sentence" at the time of his conviction.

4. Beginning on page 21, the six paragraphs under heading "III. PREJUDICE RESULTING FROM THE LACK OF UNDERSTANDING" are deleted in their entirety and replaced with the following paragraphs, which will require renumbering of subsequent footnotes:

The other showing Carrillo must make to obtain relief under section 1473.7 is "that his misunderstanding constituted prejudicial error." (Espinoza, supra, 14 Cal.5th at p. 319.) The statute itself does not define what "prejudicial" means. Our Supreme Court resolved its meaning in the context of a defendant attempting to withdraw a plea by stating the defendant must demonstrate "a reasonable probability that [he or she] would have rejected the plea if [he or she] had correctly understood its actual or potential immigration consequences." (Vivar, supra, 11 Cal.5th at p. 529; Espinoza, supra, 14 Cal.5th at p. 316.) Courts assessing whether a defendant has established a reasonable probability must consider the totality of the circumstances. (Vivar, supra, at p. 529; Espinoza, supra, at p. 320.) A reasonable probability does not mean more likely than not. (People v. Rodriguez, supra, 68 Cal.App.5th at p. 324.) Instead, it means merely a reasonable chance, which is more than an abstract possibility. (Ibid.) In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)

A defendant's decision to reject a plea leaves him or her with two options---go to trial or negotiate a plea with no immigration consequences. (Vivar, supra,11 Cal.5th at p. 529.) Thus, where a defendant claims he or she did not understand the immigration consequences of a plea, the moving papers usually attempt to show prejudice by demonstrating one or both of these options would have been pursued if the defendant had understood the immigration consequences. For example, in Vivar, the defendant established prejudice by showing "he wouldn't have pleaded guilty if he'd known it would result in his deportation." (Vivar, supra, at p. 534.) He was not required to show the decision to reject the plea would have led to a more favorable result. (Id. at pp. 529-530; see People v. Rodriguez, supra, 68 Cal.App.5th at pp. 311-312 [prejudice established if the defendant would have risked going to trial even if only to figuratively throw a "Hail Mary"].)

This case does not involve the entry of a plea. As a result, we must consider how to adapt Vivar's prejudice standard to situations (1) where a defendant goes to trial, loses, and is sentenced and (2) where a defendant admits a probation violation and receives an additional period of incarceration. Our Supreme Court has not addressed how to establish prejudice in these situations.

Carrillo's motion focused on establishing that a prejudicial error affected his decision to go to trial and the defense he presented against the charges. He did not attempt to establish a prejudicial error damaged his ability to meaningfully understand and defend against the potential immigration consequences of the probation violation or the additional incarceration imposed for the probation violation. Based on the scope of the issues addressed in Carrillo's moving papers, here we address how a defendant may establish prejudice when he or she has decided to go to trial, loses, and is sentenced. Due to the lack of authority directly on point, our analysis is guided by our Supreme Court's statements about prejudice that are general in nature---that is, do not specifically refer to rejecting a plea.

In Vivar, the court discussed prejudice by stating: "The focus on 'what the defendant would have done, not whether the defendant's decision would have led to a more favorable result' derived from the fact that a defendant ' "may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges." ' " (Vivar, supra, 11 Cal.5th at pp. 528-529.) These references to the defendant's calculations and what the defendant would have done lead us to conclude that a defendant who decides to go to trial, loses, and is sentenced can establish prejudice for purposes of section 1473.7, subdivision (a)(1) by showing there is a reasonable probability that (1) he or she would have done something differently---that is, would have taken another "path" (Vivar, supra, at p. 529)---and (2) the alternate path would have resulted in an immigration-neutral outcome.

To apply this principle to the events of 2002, we examine what decisions Carrillo could have made differently to avoid "the actual or potential adverse immigration consequences of a conviction" or the combination of a conviction and sentence. (§ 1473.7, subd. (a)(1).) There appear to be at least three decisions Carrillo made during the 2002 proceedings that are in the causal chain of events that lead to the Department of Homeland Security initiating removal proceedings based on his conviction being an aggravated felony.

Chronologically, the first was the decision to go to trial. The second was how he presented his defense at the trial. The third was his choice of arguments and evidence presented at the sentencing hearing. For example, because section 245, subdivision (a)(2) authorizes imprisonment "in a county jail for not less than six months," Carrillo could have (1) asked the court in April 2002 to sentence him to as little as six months in jail instead of the 301 days he had already served and (2) stated he would agree to whatever terms necessary, such as waiving credits, to get a sentence less than time served. (See §§ 2900.5 [custody time credit], 4019 [conduct credits]; People v. Johnson (2002) 28 Cal.4th 1050, 1052 [defendant may expressly waive statutory right to credit for time in custody before sentencing]; People v. Arevalo (2018) 20 Cal.App.5th 821, 824 [before being placed on probation, defendant waived some custody credits he accrued while in jail].)

5. On page 23, the second sentence of the third paragraph beginning "First," is deleted in its entirety and replaced with the following:

Therefore, we cannot find there is a reasonable probability that (1) Carrillo would have pursued additional defenses and (2) those additional defenses would have avoided the potential adverse immigration consequences of a conviction.

6. On page 24, the phrase "at that trial" is added to the end of the last paragraph so the paragraph now reads:

In sum, we conclude Carrillo has not demonstrated his lack of understanding of immigration consequences prejudiced his decision to go to trial or the presentation of his defense at that trial.

7. On page 27, heading IV.A. is changed to "A. Scope of the 2021 Amendment and Probation Revocation Proceedings"

8. On page 31, the first sentence of the second full paragraph, the word "encompass" is changed to "encompasses."

9. On page 32, the second paragraph under heading IV.A.2. beginning "In part III." is deleted in its entirety and replaced with the following three paragraphs:

First, we conclude a decision to admit a probation violation is analogous to the decision to plead guilty or no contest and, therefore, the test for prejudice should be essentially the same for each decision. The test adopted in Vivar is met by "demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences." (Vivar, supra, 11 Cal.5th at p. 529.) Consequently, we conclude a defendant may establish a prejudicial error under section 1473.7, subdivision (a)(1) by demonstrating a reasonable probability that he or she would not have admitted the probation violation if he or she had correctly understood the immigration consequences. In such a situation, prejudice can be established without showing that the ultimate outcome of the probation revocation proceeding would have been more favorable for purposes of immigration law.

Second, we conclude the decisions made in defending against the amount of time imposed for a probation violation are analogous to the decisions made when defending against the sentence initially imposed for the underlying conviction. Earlier we concluded a defendant who decides to go to trial, loses, and is sentenced can establish prejudice for purposes of section 1473.7, subdivision (a)(1) by showing there is a reasonable probability that (1) he or she would have taken a different path in defending against the sentence and (2) the alternate path would have resulted in an immigration-neutral outcome. Similarly, we conclude a defendant establishes prejudice for purposes of section 1473.7, subdivision (a)(1) by showing there is a reasonable probability that (1) he or she would have taken a different path in defending against the time imposed for a probation violation and (2) the alternate path would have resulted in a more favorable outcome under immigration law.

In summary, the different paths that can be shown to establish prejudice include (1) denying a probation violation instead of admitting it and (2) presenting different arguments and evidence that would have had a reasonable probability of reducing the additional period of incarceration to an immigration-safe amount. Both decisions are links in the causal chain of events that resulted in the "sentence." This interpretation of the prejudice requirement avoids gaps in section 1473.7, subdivision (a)(1)'s coverage that would thwart the statute's purpose.

There is no change in the judgment.

Appellant's petition for rehearing filed on March 29, 2024 is denied.

FRANSON, J.

WE CONCUR:

LEVY, Acting P. J.

MEEHAN, J.